There is no dispute that 90 days is the applicable time limit

Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, a Class A misdemeanor, Criminal Possession of Marijuana in the Fifth Degree, a Class B misdemeanor, and Unlawful Possession of Marijuana, a violation.

By two motions filed on the same date, Defendant seeks (1) dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors by that section, and (2) preclusion of the People’s evidence due their failure to provide Defendant with a copy of the laboratory analysis. The top count of the Criminal Court Complaint herein is a Class A misdemeanor. Thus, there is no dispute that 90 days is the applicable time limit.

A Kings County Criminal attorney said that defendant was arrested in July 2011, and was arraigned in this matter thereafter. The supporting depositions of 2 Police Officers, were contained within the Court file, and based upon the presence of that document, the People stated ready for trial at Defendant’s arraignment. Defendant was released on his own recognizance, and the matter was adjourned for Discovery by Stipulation.

The People did not have a field test or laboratory analysis to file at the arraignment. Though the Court file does not reflect the People’s Statement of Readiness at arraignments, as noted above, the purpose of the adjournment is reflected in the Court file.

The Court has ruled, in a case, that the deeming of a complaint to be an information in the absence of a laboratory report is a violation of the defendant’s due process rights. However, “the sworn allegations by the arresting officer were sufficient to satisfy the requirements of an information.”

The Court may not accept the statement of readiness made by the People at arraignment in the absence of a laboratory report. However, the absence of any evidence that Defendant objected to the People’s statement of readiness at arraignment, coupled with the Court’s notes that the purpose of the adjournment was for the service of discovery by stipulation, leads this Court to conclude that a period is a consent adjournment for the service of discovery. Therefore, this adjournment is not charged to the People.

The People filed their discovery with Defense Counsel and the Court, and repeated their statement of readiness. The matter was then adjourned for hearings and trial. Since the People are afforded a reasonable opportunity to be ready for hearings and trial, this time is also excluded.

Thereafter, the People stated not ready for hearings and trial, and asked for two weeks. Although the matter was then adjourned for hearings and trial to a date longer than requested by the People, it is well settled that post readiness, the People are to be charged with only the amount of time they request. Thus, the People are charged with 14 days.

As well as the subsequent adjourn date, the People stated not ready for hearings and trial, and asked for one week each date. For the reasons noted above, the People are charged with 7 days.

The People stated not ready for hearings and trial, however, Defendant failed to appear. A bench warrant was issued, but cleared upon Defendant’s return to the Court’s jurisdiction. The case was then adjourned for hearings and trial.

In April 2012, the People stated not ready, and requested one week. The matter was adjourned. Again, the People’s request being post-readiness, the People are charged with 7 days. Thereafter, the People stated ready for hearings and trial, however, another matter involving this same Defendant went forward to a pre-trial hearing. This matter was then adjourned and then again to another date while the other matter went forward. Since Defendant has failed to raise any credible basis upon which to question the good faith of the People’s statement of readiness, this time is also excluded. This is about drug use.

Defendant states that the People should be precluded from offering into evidence “the laboratory analysis done with respect to the alleged marijuana and cocaine…which was recovered from (Defendant’s) person” since “at no point have the People provided defense counsel with any laboratory analysis reports regarding the alleged marijuana and cocaine.”

While Defendant is correct in asserting that as of the date of his motion, the People had failed to provide him with the laboratory analysis for the evidence recovered, the People provided the subject laboratory analysis with their Response. Now that Defendant has been provided with the lab report, the question is whether the unreasonable and unexplained delay in turning this evidence over to the defense requires preclusion of the report.

“Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice …cannot be cured by a lesser sanction.” Further, in a case law, the First Department ruled “although the People failed to show good cause for their delay, the delay itself did not cause defendant any prejudice.” It discussed compelling a defendant to submit to handwriting samples, however, the same finding has been made in other matters where there was a delay in providing evidence prior to trial. In a case involving the collection of a DNA sample, the Court ruled that “the delay itself did not cause defendant any prejudice.”

In another case, the “court specifically held that the failure of a District Attorney to comply with the mandates of CPL article 240 is in no way inconsistent with the prosecutor’s continued readiness for trial.” This is based upon the difference between “the failure to comply with discovery, which could be addressed by a motion to compel under CPL Sec. 240.20, and a failure to perform an act which results in a delay of the prosecution, such as the failure to produce the Defendant for trial.”

Though Defendant’s assertion that the delay in producing the laboratory report was unreasonable and unexplained is absolutely correct, as in the second case, Defendant here cannot establish any prejudice as a result of the delay. Defendant has been provided with the report more than two months before the scheduled trial date giving Defendant more than adequate time to prepare his defenses. Thus, in the absence of any prejudice to the defense, in this case, there is no basis to preclude the People’s evidence.

Therefore, this branch of Defendant’s motion will also be denied.

Drugs don’t work in solving problems, whether you take it or not, it will not be a solution to one’s problem. Here in Stephen Bilkis and associates, our Kings County Criminal lawyers are always ready to render their advice to your predicaments. Don’t hesitate to consult our Kings County Marijuana Possession Defense attorneys if you are a victim of a frame up in drug possession cases.